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Lessons From Lesotho: Arbitrators' Powers Reviewed

April 2004
International Construction Law Review
Ellis D. Baker

Introduction
The English Court of Appeal’s decision on 31 July 2003 in Lesotho Highlands Development Agency v Impregilo SpA [1] contains interesting findings in relation to the currency of awards and the granting of interest. Together, they offer insights into the current position on the powers of an arbitrator. This article considers the implications of the decision on both points and particularly the wider question of the law governing the award of interest. (At the time of writing, leave to appeal to the House of Lords had just been granted.)

Background to the project
The Lesotho Highlands Water Project was first proposed in the 1930s. The concept was the generation of hydro-electric power through the harnessing of the heavy rainfalls of the mountainous Kingdom of Lesotho. This would provide a source of power for neighbouring South Africa and economic benefits for Lesotho, which possesses few natural resources.

Following a series of feasibility studies by international engineering consultants spanning the 1960s, 1970s and 1980s, the respective governments signed the Lesotho Highlands Water Project (LHWP) Treaty on 24 October 1986. The scheme, one of the largest infrastructure projects in Africa, was chiefly funded by the World Bank. The principal element of the first phase (Phase 1A) was the 1950 million m3 Katse Dam, construction of which proceeded throughout most of the 1990s, from commencement on 1 February 1991 until the issue of a taking over certificate on 26 February 1998.

The project itself attracted considerable publicity and more than a little controversy. Like many dams, the Katse was opposed by some environmentalists because of its impact upon local communities and their culture and also upon the rich flora and fauna [2] of the Lesotho Highlands.

Even more dramatic publicity was generated by alleged corruption by a senior government official and criminal proceedings which followed the allegations. In addition to the conviction of the official, [3] attention was focused on the international contractors accused of having paid bribes put at over US$2 million.

It may be noted in passing that, while rumours of bribes paid by contractors for favourable treatment in different parts of the world are fairly common, [4] criminal proceedings are comparatively rare. The Lesotho government prosecutors managed to obtain findings against some of the contractors, who also faced the possibility of exclusion from opportunities to tender in Lesotho and South Africa and even from World Bank-funded projects elsewhere.

While these matters brought a degree of unwelcome publicity, they are no more than part of the general background to the disputes which led to the English courts’ important decisions. These are explained in the following section.

The parties and their commercial disputes
Before the LHWP treaty in 1986, the Government of Lesotho had been represented by the LHWP Unit. Co-operation with South Africa was overseen by the Joint Permanent Technical Commission (JPTC). Successor to the LHWP Unit, the Lesotho Highlands Development Authority (LHDA), was the client on the Katse Dam project and the respondent in the arbitration proceedings.

The work was principally executed by a consortium of major international contractors, known collectively as Highlands Water Venture (HWV) and comprising Impregilo SpA of Italy (whose name therefore appears in the title of the case in the law reports), Bouygues of France, Hochtief of Germany, the UK’s Balfour Beatty and Kier International, as well as Stirling International and Concor and Group Five of South Africa. HWV was the contractor on the Katse Dam project and the claimant in the arbitration proceedings.

The disputes between the parties can be characterised as arising from claims by HWV for extra labour and other costs. In 1997, HWV had given notice of its intention to submit what became known as claim 37, being reimbursement of higher wages that HWV claimed to have paid to its workforce pursuant to a memorandum of understanding. This claim was put at US$12 million at the exchange rates prevailing in 1990 when the contract was signed. Interest was also claimed (of which more below). HWV subsequently advanced seven further claims. These included claim 12, for the increase in statutory vehicle licence fees which took place during the years of the project, claims 53 and 66 arising out of variations of the works and claim 62 arising out of extra “Shotcrete” allegedly ordered late.

The contract between LHDA and HWV was based on an amended version of the FIDIC Red Book. [5] Clause 67.3 of the contract contained provision [6] for final and binding arbitration under the ICC Rules by three arbitrators, applying the law of the contract, namely, the law of Lesotho.

Terms of reference as required by the ICC Rules of Arbitration were signed by the parties and the tribunal members on 29 September 1999. The terms of reference set out the claims, the matters disputed and defined the issues to be decided.

The terms of reference also contained an amended arbitration clause, by which the parties clarified certain matters. The law of Lesotho was confirmed as being applicable to the merits of the arbitration but the “applicable procedural rules” clause of the terms of reference provided that “the dispute is to be finally settled in accordance with the provisions of the Arbitration Act 1996 (UK)... and the rules of arbitration of the [ICC] in force as from 1 January 1998”.

The provisions of the English Arbitration Act were here substituted for the Lesotho Arbitration Act as the place of the arbitration, originally specified as Geneva, had been agreed to be London. The terms of reference also gave the arbitrators power to open up, revise and review certificates and other decisions of the engineer.

Crucially for what followed, the arbitrators were asked to determine the currency or currencies in which sums under claim 37 (if any) should be paid. They were also asked to decide whether interest was recoverable and, if so, in what amounts.

Arbitration and the challenge to the award
The arbitrators appointed were all lawyers: the late Patrick Twigg, QC (replaced by John Blackburn, QC), Gordon Jaynes and Professor John Uff, QC, the chairman, described by the judge hearing the challenge to the award as “an experienced panel, chaired by a very experienced arbitrator”.

The hearing was conducted in London over some two and a half weeks in October 2001. The tribunal delivered its award on 25 January 2002.  It found in favour of HWV on three of its seven claims (claims 53 and 66 being treated as one) and awarded it sums of approximately £1.6 million and €5.96 million plus interest. On reviewing these findings, LHDA decided to challenge the award.

LHDA’s challenge was brought under sections 67 and 68 of the English Arbitration Act 1996, on the grounds that it was made in excess of the arbitrators’ substantive jurisdiction and/or was the result of a serious irregularity in the conduct of the reference and/or was made without jurisdiction. It was not open to LHDA to bring its challenge on the basis of an error of law, [7] since the ICC Rules of Arbitration preclude such an action. Whilst the matters in issue could arguably have been characterised as errors of law, they were regarded as wide enough. The matters in issue could arguably have been characterised as errors of law, but alternatively could be regarded as wide enough to straddle the boundaries, often not definite, between error of law, excess/absence of jurisdiction and serious irregularity. The matters on which LHDA relied can be divided into two: (i) the currency of the award and (ii) the award of interest. Both will be considered in detail below.

LHDA’s challenge was in the form of an application to the High Court to set aside the award or to remit it to the tribunal. It was heard by Morison J in the Commercial Court on 17 October 2002 and his judgment was delivered on 15 November 2002. His decision was to grant an order to remit the award to the arbitrators for reconsideration of both the currency and interest issues.

HWV’s appeal against this decision was heard on 11 July 2003 by the Court of Appeal, who gave their judgment on 31 July 2003. The (unanimous) decision was in favour of LHDA on both currency and interest issues.

The currency issue
Self-evidently, rates of currency exchange are capable of profound effects upon the profitability of international construction (and other) contracts. The currency in which arbitration awards are made can thus be significant. The Editors of the Building Law Reports Commentary on the Court of Appeal decision observed, [8] justly, that: “The issue of different currencies can be an enormously important one... roaring inflation and extreme exchange rate volatility could make the currency in which an award was made the difference between substantial recovery and pyrrhic victory”.

The parties had recognised these facts from the outset. The contract made detailed provision in relation to currency issues. The currency of account was stated to be Maloti, being the currency of the Kingdom of Lesotho. The rates of exchange between the Loti and the foreign currencies [9] referred to in the contract were to be at the rate fixed at the close of business by the Central Bank of Lesotho 42 days before the closing date for the submission of tenders. This had the effect of placing risk of devaluation of the Loti upon the contractors: the contract provided that “payments to the Contractor shall not be subject to variations in the rates of exchange between Maloti and foreign currencies that have been stated in the Contract”.

By the time the arbitrators came to make their award, the currency issue had become an acute one. The sharp depreciation of the Maloti, tied to the South African rand, against the relatively “hard” European currencies meant that an award expressed in Maloti would be comparatively beneficial to LHDA as the paying party, while an award in the European currencies would greatly benefit the HWV member firms.

The tribunal decided in favour of HWV and made the award mentioned above in pounds sterling and Euros plus interest. [10] It did so on the basis that this question was a matter of procedural law.

As has already been stated, the parties had agreed in the terms of reference that the English Arbitration Act 1996 (together with the ICC Rules) should replace Lesotho’s Arbitration Act as the “applicable procedural rules”. Section 48 of the Arbitration Act provides [11] that the tribunal has a range of remedies “unless otherwise agreed by the parties”. These include [12] the provision that “the tribunal may order the payment of a sum of money, in any currency”.

English law was not changed by the enactment of this provision. In Jugoslavenska Oceanska Plovidba v Castle Investment Co, [13] Lord Denning MR had stated [14] in simple terms his opinion that “English arbitrators have authority, jurisdiction and power to make an award for payment of an amount in foreign currency”.

The tribunal, then, was satisfied that the question was a matter of procedural law, that the procedural law was English law and that they therefore had power to make their award in pounds sterling and/or such other currencies as they saw fit.

Having reached this conclusion, the tribunal exercised its discretion in favour of HWV by converting the sums awarded as described. A passage of the award quoted by Morison J contains the tribunal’s rather generalised intent to “express its award in such currencies as are considered appropriate in the circumstances”. Lord Denning in Jugoslavenska Oceanska had insisted that “the arbitrators can and should make their award in whichever of the two currencies [15] seems to produce the most appropriate and just result”. In Miliangos v George Frank (Textiles) Ltd, [16] the leading House of Lords authority on currency awards, Lord Wilberforce, [17] displayed the concern which presumably informed the tribunal’s thinking in the exercise of their discretion in HWV’s favour: “it must surely be wrong in principle to allow procedure to affect, detrimentally, the substance of the creditor’s rights”. By converting the award into comparatively hard European currencies, the tribunal would have regarded itself as protecting the position of the creditor, namely, HWV.

Morison J, however, regarded the tribunal as having exceeded its jurisdiction in its award on currency. Having reassured himself that LHDA’s challenge was not “in substance and reality a section 69 challenge... dressed up as a challenge under section 68 or 67”, he proceeded to examine the tribunal’s position. He found that it was, by the arbitration clause, “to carry out the function previously held by the Engineer. Their function was to ascertain what sums were due and owing under the contract”. It therefore followed that, “as a matter of English law, the currency of the award is a matter to be determined by the applicable law of the contract”. While the provisions of the Arbitration Act applied to procedural matters properly so-called, this could not mean, “that the provisions of the Act predominate over the arbitration clause on matters of substance”.

The arbitrators had, therefore, no power to make the award in a currency other than as specified by the contract and “by purporting to exercise a discretion which they wrongly believed was conferred on them by the Act, they were asserting a power which they did not possess”. The award was remitted to the arbitrators for reconsideration on this point “so that they may produce an award which accords with the contractual provisions”.

On appeal, HWV argued that the Arbitration Act gave the tribunal an “unfettered power” to order the payment of a sum of money in any currency. The argument was that an error in the exercise of this power could only be, at most, an error of law, which was not, and could not be, grounds for a challenge by LHDA in English law where the arbitration agreement incorporated the ICC Rules.

It is perhaps in the Court of Appeal’s rejection of this argument that the single most important contribution of the LHDA case to the development of the law on the powers of arbitrators over currency of award is found. Morison J came close to a similar assertion when he said that the tribunal did not have “the power to make an award in currencies other than those stipulated for in the contract” and spoke of the tribunal as “purporting to exercise a discretion which they wrongly believed was conferred on them by the Act”. The Court of Appeal, because of HWV’s concentration on the point before them, dealt more specifically with the effect of section 48(4) of the Arbitration Act.

In the words of Brooke LJ, [18] “where there is a contract which identifies the currency of account and the currency of payment and specifies the proportions of any debt due under the contract which must be apportioned in different currencies to the different members of an international consortium, section 48(4) of the 1996 Act merely repeats in codified form what had already been established by this court in Jugoslavenska Oceanska case”.

In this case, section 48(4) has “merely restated what must be taken (in the absence of evidence to the contrary) to be the effect of the substantive law of the Kingdom of Lesotho which the arbitrators were bound to apply”.

What section 48(4) does not do is create a “free standing power to choose whatever currency arbitrators might think appropriate when the terms of a contract are clear”. Section 48 is part of the non-mandatory powers given to arbitrators “unless otherwise agreed by the parties”. The tribunal concluded that the parties had not “otherwise agreed”, which was true in the sense that they had not expressly ousted section 48(4) (or any other part of section 48). But in their contract the parties had reached agreement as to the arbitrators’ powers, as envisaged in the legislation.

Brooke LJ’s conclusion that “the parties’ agreement was clear on the face of their contract, and the arbitrators, standing in the shoes of the engineer, were bound to give effect to it”, is consistent with the concept of party autonomy. It is also helpful in defining the limits of the arbitrators’ powers. This is a theme which the Court of Appeal in particular revisited in deciding the interest issue.

The interest issue
Whether interest is available to a party who succeeds in making out a claim is a crucial question, not least in construction cases, where the sums found to be owing may be large and the time-scales of projects are often long. However, in English law, the answer to the question has not been clear-cut. The lack of clarity has been of long duration and on more than one aspect. The findings of the Commercial Court and the Court of Appeal in LHDA v Impregilohave not provided comprehensive answers on all aspects, chiefly because they were not required to by the limited scope of the dispute, but they do represent a significant contribution to the process of clarification.

Put at its simplest, the question for the court was whether, given that HWV should be awarded a sum on a particular point of their claim, they should have interest too and, if so, how much?

Traditionally, English law had been discouraging to claimants seeking interest. They would be confronted by what the House of Lords in La Pintado v President of India [19] described as “the rule laid down in London, Chatham and Dover Railway Co v SE Railway Co that the common law does not award general damages for delay in payment of a debt beyond the date when it is contractually due”.

However, although their Lordships in La Pintada saw it as “a wholly inappropriate exercise of the judicial function” of the House of Lords to depart from the rule in the London, Chatham and Dover case, a good deal of judicial and legislative energy has been devoted to reversing or, at least, modifying its effect. Mustill and Boyd, [20] while affirming that interest is not recoverable as general damages under La Pintada, noted that this rule “rests upon the legal presumption that in the usual course of events a person does not suffer any loss by reason of the late payment of money—accordingly a claimant is not entitled to recover interest as damages for late payment merely by alleging and proving that the money was paid late”. Mustill and Boyd went on to point out that this presumption is rebuttable and “probably without much difficulty in most commercial arbitrations, provided the claimant remembers to take the necessary procedural steps to plead and prove the claim for interest as a claim for special damages”. Back in the 1980s, the courts frequently sought ways to award interest. In Wadsworth v Lydall, [21] the Court of Appeal distinguished the London, Chatham and Dover case on the grounds that it had been “not concerned with a claim for special damages. The action was an action for an account. In La Pintada the House of Lords was concerned only with a claim for interest by way of general damages”. It was at this time that it became established in cases reported in the Building Law Reports that interest was, in principle, recoverable. Murray J in Department of Environment for Northern Ireland v Farrans [22] relied on Wadsworth v Lydall in distinguishing London, Chatham and Dover when he held that “the arbitrator will have power to award damages which, if the case is made out, can include interest incurred or lost by the contractor as a foreseeable consequence of the Employer’s failure to pay on the due date”.Perhaps better known were the twin decisions of the Court of Appeal in Minter v Welsh Health Technical Services Organisation [23] and Rees & Kirby v Swansea City Council. [24] Judge Anthony Thornton, QC, in the Technology and Construction Court has recently described [25] the effect of these decisions: “Where additional direct costs have been incurred during the course of the work which are recoverable as contractual entitlements under the contract, it is a matter for the parties and the terms of their contract whether the additional cost to the contractor of financing those costs between the dates that the costs were incurred and paid for” is recoverable, but “such a recovery, even for compound interest is not intrinsically irrecoverable as being usurious or contrary to public policy…”. However, if the financing costs were not directly incurred as a result of the instructions or other causes which gave rise to an obligation on the employer to pay but were incurred, instead, as a result of some other cause, these costs would not be recoverable as direct loss and expense. A number of other developments had also affected the position. Legislation moved the UK’s Arbitration Act regime away from the London, Chatham and Dover position. Under the 1950 Arbitration Act, arbitrators had been able to award simple interest (only) from the date of their award, i.e. on the award rather than on the sums in the award. This was extended by the Administration of Justice Act 1982, which inserted section 19A retrospectively into the 1950 Act. The effect was to authorise arbitrators to award interest on unpaid sums, i.e. in the award as well as from the date of the award, with two exceptions:

(i) Only simple interest could be awarded; the House of Lords confirmed subsequently in WestdeutscheLandesbank v Islington LBC [26] that the court could not award compound interest in respect of common law obligations.

(ii) The arbitrator could not award statutory interest on sums paid late but before the commencement of the arbitration proceedings.

The 1996 Arbitration Act then extended further the powers of arbitrators to award interest. [27] The parties are free to agree on the arbitrator’s interest-awarding powers, [28] in default of which sections 49(3) and 49(4) give the arbitrator power to award simple or compound interest from such dates at such rates and with such rests as it is considered meets the justice of the case for any amount awarded by the tribunal up to the date of the award, as well as from the date of the award until payment.

It is in the interpretation of these provisions in particular that the importance of the LHDA decision lies.

Whether interest is claimable under a contractual provision as a debt or by way of damages as a result of breach of contract by the employer (or his agent) is potentially a crucial question in cases like LHDA where more than one jurisdiction is involved.

It could mean that, where the non-payment is merely in the nature of a debt, contractual interest will be payable, whereas, where there is a breach of contract, the interest will be part of the damages. In an international dispute, that could mean that the interest question would be decided by reference to two different jurisdictions. Dicey and Morris [29] state that “it is firmly established that more than one national system of law may bear upon an arbitration” and that is a possible outcome where arbitrators find both contractual debts owing to the contractor and breach of contract, for example, in omission to certify.

The uncertainty discussed above, however, extends to this aspect, too. Brooke LJ in the LHDA case referred to an “ongoing difference of opinion” [30] between the editors of Dicey and Morris and two unreported Commercial Court decisions. [31] Dicey and Morris are clear [32] that “the liability to pay contractual interest and the rate of such interest payable in respect of a debt... are, in general, determined by the law applicable to the contract”. This is because in their view [33] “the existence of a right to claim interest is properly classified as a substantive matter and thus should be referred to the lex causae of the relevant claim”. By contrast, the rate at which interest is paid should be regarded as a procedural matter and therefore ascertained by reference to the lexfori.The two Commercial Court judges, however, regarded the whole matter of interest as one of procedure and so entirely referable to the lexfori.

In the LHDA case, which law governed the award of interest was vital. If, as the arbitrators thought, it was to be determined by them under an absolute discretion conferred by the UK Arbitration Act, [34] they could “award simple or compound interest from such dates, at such rates and with such rests as... meets the justice of the case—on the whole or part of any amount awarded by the tribunal in respect of any period up to the date of the award”.

It was this wide statutory power which the arbitrators had exercised in awarding interest to HWV on its successful claim.

However, LHDA challenged the arbitrator’s view of their powers to award interest in this case. They did so for good reason. If the law of Lesotho applied, interest would be payable ex mom under the law of that country only where there was a breach of contract (rather than a mere debt). Furthermore, the in duplum rule would apply, by which interest cannot exceed the principal sum owed. This would therefore provide an upper limit to the amount of interest which could be awarded to HWV.

Morison J in the Commercial Court was concerned that “the question of interest is less clear” (than the currency issue). In particular, he referred to the “debate as to whether matters of interest as part of damages are matters of substance or procedure. Or more precisely, whether such interest is a matter determined by the applicable law or by the lexfori”.

In the result, the first instance judge was able to avoid deciding this issue as a matter of legal principle. He was able to do this because it was clear on the facts that

“the amount due to HWV is in the nature of a contractual debt rather than an entitlement to damages. That being so, and following the view of Dicey and Morris, ‘both the liability to pay and the rate of interest is that determined by the applicable law of the contract’, namely the law of Lesotho. By that law, it appears to be the case that interest is only payable when LHDA could be said to be in culpable default, and in any event the amount of the interest cannot exceed the amount of the principal (respectively, the in mom and duplum principles)”.

This meant that Morison J was not forced to decide whether interest on damages for breach was a matter of substantive or procedural law, although he gave strong obiter indications of his preference for the Dicey and Morris view, viz, that these should also be regarded as a matter of substantive law, albeit that the rate of interest would “be a matter for the applicable procedural law”. [35]

Before the Court of Appeal, HWV had sought to argue that section 49(3) of the Arbitration Act 1996, to which the parties had agreed to subject themselves, gives arbitrators complete power to award interest as they think fit. Brooke LJ rejected this argument [36]: “where the law of a different jurisdiction, like the law of the Kingdom of Lesotho, confers a substantive right to interest ex mora,there is no room for any discretionary procedural power”.

The result was that “the arbitrators therefore exceeded their powers when they had recourse to what would have been their discretionary powers in section 49(3) to resolve a matter to which they should have applied the substance of the contract”.

The Court of Appeal produced a more challenging finding on the rate of interest payable: “so far as the rate of interest is concerned, in the absence of express agreement this is a matter for the arbitrators to decide as a matter of the lexfori”.

Brooke LJ based this upon the view of the editors of Dicey and Morris, [37] expressed, even though they find the issue “controversial”, as follows: “While it is submitted that the arguments are somewhat finely balanced, it is nevertheless submitted that the rate of interest claimed as damages for breach of contract should be governed by English law as the lexfori”

In making this finding, the Court of Appeal made clear its expectation that the arbitrators to whom the award was remitted “will no doubt be slow to depart from the rates of interest the parties agreed to be appropriate in relation to the non-payment of interim certificates” (i.e. the contractual rates).

Conclusions: what is and is not decided by the LHDA case
The LHDA case has been the subject of some attention already in the construction industry and amongst legal commentators. The article in Construction News, one of the leading journals of the UK construction industry, has been mentioned above. [38] The case-note in International Arbitration Law Review [39] commends the Court of Appeal’s decision on “issues relating to currency and interest” which “very helpfully gives clear guidance to arbitrators”.

What the case has decided on currency is significant but can be stated simply. It is hard to improve upon the words of Brooke LJ to do so: “the parties’ agreement was clear on the face of their contract and the arbitrators, standing in the shoes of the engineer, were bound to give effect to it. Section 48(4) [of the Arbitration Act] does not create a freestanding power to choose whatever currency arbitrators might think appropriate when the terms of the contract are clear”. It is submitted that this decision is consistent with the purposes of the Arbitration Act. Crucially, the power to make awards in the other currencies is amongst the non-mandatory provisions of the Act. While it is true that the LHDA case places some limits on the scope of arbitrator’s powers, it upholds the spirit of party autonomy. The parties should have scope to reach their own agreement on what powers and duties they want to give the tribunal. They had done so on currency and the court would oblige the tribunal to give effect to that agreement.

The issue concerning interest is, in the words of the Editors of the Building Law Reports [40] “a more interesting one”. In one sense, it can be viewed in a similar way, as upholding the agreement of the parties. As Brooke LJ expressed it: “The arbitrators were bound to apply the law of the Kingdom of Lesotho to the substance of the dispute... The arbitrators therefore exceeded their discretionary powers in section 49(3) to resolve a matter to which they should have applied the substantive law of the contract”. So a further limitation on the power of arbitrators is the consequence; the parties’ choice of the law of Lesotho would prevent an award of interest inconsistent with the principles of mora and duplum.

However, the interest issue is far from resolved by LHDA. This is in no sense a criticism of the judges concerned, who decided the matters before them. This meant finding that the award of interest on contractual debts is a substantive matter and therefore referable to the lex causae.The correctness of the Court of Appeal’s finding that the rate of interest in such a case should be decided according to the lex fori has been questioned as “difficult to understand”. [41]

The position where the sum owed is not a contractual debt, but damages for breach of contract, has not been definitively resolved. Morison J offered the comment, which must be obiter, that: “If this were a question of the obligation to pay interest as damages for breach of contract, then I would agree with the editors of Dicey and Morris... like the editors, I can see no good reason why, if the issue of interest under a contract is a matter for the applicable law, it should cease to be so where the claim is for interest damages”.

The Court of Appeal, while not disturbing this observation, concluded, without obvious regret, that: “on the present occasion it is unnecessary for us to resolve that dispute”. The position therefore remains in the words of Morison J that “this is an area where the views of the higher courts will be required”.

About the Author
Ellis Baker is a partner in the London office of White & Case. He can be reached at .

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[1] [2003] EWCA Civ 1159; [2003] BLR 347.

[2] Few, if any, other small land-locked countries would be able to claim nearly 300 species of bird, for example.

[3] He received a total sentence of 18 years in prison, following conviction on 13 counts of bribery.

[4] Information can be obtained from the monitoring organisation Transparency International at www.transparency.org.uk.

[5] Conditions of Contract for Works of Civil Engineering Construction of the Federation Internationale des Ingenieurs Conseils, 4th edition, 1987 (reprinted 1988).

[6] Although the arbitration agreement was amended as set out in the terms of reference (see below).

[7] Under s.69 of the Arbitration Act 1996.

[8] [2003] BLR 348.

[9] These were basically the currencies of the HWV member firms; therefore, pounds sterling, French francs, deutschmarks and Italian lire.

[10] The Euro had, of course, succeeded francs, deutschmarks and lire by this time.

[11] S.48(2).

[12] S.48(4).

[13] [1974] QB292.

[14] At p.298.

[15] In the example to which Lord Denning was referring.

[16] [1976] AC 443.

[17] At p.465.

[18] At p.355.

[19] [1984] 2 Lloyd’s Rep 9 (confirmed in IM Properties v Cape and Dalgleish, The Times, 28 May 1998).

[20] Mustill and Boyd, Commercial Arbitration (2nd ed., 1989), p.393.

[21] [1981] 1 WLR598.

[22] (1981) 19 BLR 1.

[23] (1981) 13 BLR 1.

[24] (1986) 30 BLR 1.

[25] In Amec Process and Energy Ltd v Stork Engineers & Contractors BV (No 4) (2002) CILL 1883.

[26] [1996] 2 All ER 961.

[27] By s.49.

[28] Ss.49(l) and 49(2).

[29] Dicey and Morris The Conflict of Lam (13th ed., 2000), p.593.

[30] At p.357.

[31] Midland International Trade Services v Sudairy, 11 April 1990 and Kuwait Oil Tanker Co SAK v AlBader, 16 November 1998.

[32] Dicey and Morris p.154.

[33] Ibid. p.1459.

[34] S.49(3).

[35] Daniel Atkinson, in his Construction News article on the case, points out that, if the interest is contractual, the rate should be part of the substantive laws too.  D Atkinson, “English Law is Lacking in Interest” (2003) Construction News, 2 October, p.8.

[36] At p.358.

[37] L Collins (Ed), Dicey and Moms on The Conflict of Laws (13th ed., 2000) para. 33-387.

[38] Note 35, above.

[39] A Sheppard: “Currency of Awards and Interest (2003) 6 International Arbitration LawReview6/N54—55.

[40] [2003] BLR 347 at 349.

[41] Atkinson op.cit., note 35, above.